218 F.3d 132 (2nd Cir.

2000)

JOEL A., MICHAEL D., ERIC R., DAVID S., MAXX R., AND
RAY D., Intervenor-Plaintiffs-Appellants,
MARISOL A., by her next friend, Rev. Dr. James Alexander
Forbes, Jr., by her next friend Raymunda Cruz, LAWRENCE
B., by his next friend, Dr. Vincent Bonagura, THOMAS C., by
his next friend, Dr. Margaret T. McHugh, SHAUNA D., by her
next friend, Nedda de Castro, OZZIE E., by his next friends,
Jill Chaifetz and Kim Hawkins,
DARREN F., DAVID F., by their next friends, Juan A.
Figueroa, and Rev. Marvin J. Owens, BILL G., VICTORIA G.,
by their next friend, Sister Dolores Gartanutti, BRANDON H.,
by his next friend, Thomas H. Moloney, STEVEN I., by his next
friend, Kevin Ryan, on their own behalf and behalf of all others
similarly situated, WALTER S., RICHARD S., by their next
friends, W.N. and N.N., grandparents, DANIELLE J., by her
next friend, Angela Lloyd, Plaintiffs-Appellees,
v.
RUDOLPH W. GIULIANI, Mayor of the City of New York,
MARVA LIVINGSTON HAMMONS, Administrator of the
Human Resources Administration and Commissioner of the
Dept. of Social Services of the City of New York, GEORGE E.
PATAKI, Governor of the State of New York, JOHN
JOHNSON, Commissioner of the New York Office of Children
and Family fka Commissioner of the Dept. Social Services of
the State of New York, NICHOLAS SCOPPETTA, in his
official capacity as Commissioner of the New York City
Administration for Children's Services, Defendants-Appellees.
Docket No. 99-7218
August Term 1998

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT
Argued July 14, 1999

Decided: July 10, 2000

Appeal from an order of the United States District Court for the Southern
District of New York (Robert J. Ward, District Judge) approving class
action settlement agreements between the Marisol plaintiffs and the City
and State defendants.
Affirmed.[Copyrighted Material Omitted]
MARC FALCONE, Paul, Weiss, Rifkind, Wharton & Garrison (Daniel J.
Leffell, Mariann Meier Wang, Tobias B. Wolff, Victoria Cook, Paul,
Weiss, Rifkind, Wharton & Garrison, and Douglas Lasdon, David Pumo,
Urban Justice Center, on the brief), New York, New York, for IntervenorPlaintiffs-Appellants.

GRACE GOODMAN, Assistant Corporation Counsel (Larry A. Sonnenshein,

Gail Rubin, Michael D. Hess, Corporation Counsel of the City of New York, on
the brief), New York, New York, for Municipal Defendants-Appellees.

WILLIAM BRISTOW, Assistant Attorney General (Preeta D. Bansal, Solicitor

General, Judith T. Kramer, Assistant Attorney General, Michael S. Belohlavek,
Assistant Attorney General, Eliot Spitzer, Attorney General of the State of New
York, on the brief), New York, New York, for State Defendants-Appellees.

MARCIA ROBINSON LOWRY, Children's Rights, Inc. (Susan Lambiase,

Shirim Nothenberg, Children's Rights, Inc., and Karen Freedman, Lawyers for
Children, Thomas F. Curnin, Ira J. Dembrow, Cahill Gordon & Reindel, David
M. Brodsky, Jess A. Velona, Schulte Roth & Zabel LLP, on the brief), New
York, New York, for Plaintiffs-Appellees.

RICHARD J. DAVIS, Weil, Gotshal & Manges LLP (Harris J. Yale, Janet L.
Goldberg, Weil, Gotshal & Manges LLP, on the brief), New York, New York,
for Amici Curiae The Judge David L. Bazelon Center for Mental Health Law,
The National Center for Youth Law, Support Center for Child Advocates,
Youth Law Center, Dean Bogart R. Leashore, Dean Thomas M. Meenaghan,
Dean Ronald Feldman, Dean Mary Ann Quaranta, Dean Sheldon R. Gelman,
Dean Roger A. Levin, and Dean Frances L. Brisbane in support of Appellees'
Opposition to Intervenor's Appeal.

Before: WALKER, CABRANES, and SACK, Circuit Judges.

JOHN M. WALKER, JR., Circuit Judge:

Intervenor-Plaintiffs-Appellants Joel A., Michael D., Eric R., David S., Maxx
R., and Ray D. (the "Joel A. objectors" or "the appellants") appeal from an
order and judgment of the United States District Court for the Southern District
of New York (Robert J. Ward, District Judge) that approved a class action
settlement between the class action plaintiff children and officials of New York
City and New York State. The plaintiff class, consisting of children either in the
custody of the New York City Administration for Children's Services
("NYCACS" or "ACS") or at risk of neglect or abuse and whose status is or
should be known to NYCACS (collectively, "the plaintiffs"), alleged that they
were deprived of appropriate city and state services and sought to hold
accountable New York City Mayor Rudolph Giuliani, the Administrator of the
Human Resources Administration and Commissioner of the Department of
Social Services, Marva Livingston Hammons, the NYCACS Commissioner,
Nicholas Scoppetta, as well as George E. Pataki, Governor of New York, and
Brian Wing, Acting Commissioner of the Department of Social Services of the
State of New York (collectively, "the defendants"). The appellants, a class
represented by Joel A., unsuccessfully objected to a settlement between the
plaintiffs and defendants on the ground that it imposes overbroad restrictions on
the class members' right of access to the courts for a specified period in
exchange for illusory relief, and therefore that the district court abused its
discretion in approving the settlement. Because we find that the district court
did not abuse its discretion, we affirm the decision below.

BACKGROUND
7

The detailed allegations of the named plaintiffs, eleven children who claim
they were deprived of the services of the New York City child welfare system
to their extreme detriment, are fully set forth in the district court's opinion,
Marisol A. ex rel. Forbes v. Giuliani, 929 F. Supp. 662, 669-72 (S.D.N.Y.
1996) ("Marisol I"), and it is unnecessary to describe them further here. It will
suffice to say that in December 1995, the plaintiffs, acting through their adult
next friends, sought declaratory and injunctive relief against the defendants
claiming injuries caused by systemic failures of the City's child welfare system.
The complaint charged that the defendants, in operating that system, had
violated an array of federal and state laws, including the First, Ninth and
Fourteenth Amendments to the United States Constitution, the Adoption
Assistance and Child Welfare Act of 1980, 42 U.S.C. 620-628, 670-679a,
and the Child Abuse Prevention and Treatment Act, 42 U.S.C. 5101-5106a,
among others. See Marisol I, 929 F. Supp. at 672.

On June 18, 1996, the district court granted class certification under Fed. R.
Civ. P. 23(b)(2) to a broad class of plaintiffs subject to the purview of the New
York City Child Welfare Administration, currently known as ACS. The district
court defined the class as "[a]ll children who are or will be in the custody of
[ACS], and those children who, while not in the custody of ACS, are or will be
at risk of neglect or abuse and whose status is known or should be known to
ACS." Marisol I, 929 F. Supp. at 693. We affirmed the certification, but
directed the district court to break the class into various subclasses, and to
identify for each subclass (1) the discrete legal claims at issue, (2) the named
plaintiffs aggrieved under each such discrete claim, and (3) the subclasses
represented by each named plaintiff. Marisol A. ex rel. Forbes v. Giuliani, 126
F.3d 372, 379 (2d Cir. 1997) (per curiam) ("Marisol II").

On remand, the district court certified three subclasses: (1) children whom the
defendants know or should know have been abused or neglected/maltreated by
virtue of a report of abuse or neglect/maltreatment; (2) children in families in
which there is an open indicated report of abuse or neglect; and (3) children in
the custody of ACS. Marisol A. ex rel. Forbes v. Giuliani, No. 95 Civ. 10533
(RJW), 1998 WL 199927, at *5 (S.D.N.Y. Apr. 23, 1998) ("Marisol III"). In
May 1998, the district court granted intervention to three additional named
plaintiffs and identified the subclasses they represented and the legal claims
they asserted. Marisol A. ex rel. Forbes v. Giuliani, No. 95 Civ. 10533 (RJW),
1998 WL 265123, at *2-4 (S.D.N.Y. May 22, 1998) ("Marisol IV"). Although
this process provided an opportunity for any objector to challenge the subclass
designation, the Joel A. objectors, appellants here, did not challenge the
adequacy of the class representatives nor appeal from the certification of the
subclasses. There is no dispute that the Joel A. objectors are members of the
third subclass of Marisol plaintiffs: children in the custody of ACS.
I. The Settlement Agreements

10

After more than two years of intensive discovery and on the eve of trial in July
1998, the parties informed the district court that they were engaged in
settlement negotiations. The trial date was postponed and the parties conducted
negotiations for over four months. On December 2, 1998, two settlement
agreements signed by the appropriate parties were filed with the district court:
the City Settlement Agreement and the State Settlement Agreement.

11

The City Settlement Agreement establishes an Advisory Panel of four experts

in the child welfare field selected and approved by plaintiffs and the City
defendants. The Advisory Panel is to study various areas of ACS' operations,

including permanency, placement and evaluation, and monitoring of private

agencies, with the full cooperation of ACS, which agrees to provide the Panel
with full access to information, documents, and personnel. The Advisory Panel
is required to report on each of the enumerated areas and to determine whether
ACS is making good faith efforts toward reform in those areas; if the Panel
finds a lack of good faith, plaintiffs can seek judicial relief, using the Panel's
findings as prima facie evidence that ACS is not acting in good faith. Notably,
the City Agreement also contains limitations on the filing of class action
lawsuits through December 15, 2000, the date the Agreement expires.
12

The State Settlement Agreement establishes a regional office of the New York
State Office of Children and Family Services ("OCFS") in New York City to
monitor and supervise child welfare services within the City, and provides for
improvements to the State Central Register, the child abuse and neglect hotline.
OCFS is also required to file fatality reports and undertake one or more case
record reviews of ACS records in various areas, such as child protective
services and cases of children in placement, to determine if ACS is complying
with applicable laws and reasonable case work practice. The State Settlement
Agreement also contains limitations on filing class action suits until December
31, 2000, the date the Agreement expires.
II. The Joel A. Objectors

13

On January 15, 1999, on the eve of the hearing to determine the fairness of the
settlement and on the last day upon which interested parties could file
objections to the settlement, the Joel A. objectors filed a separate class action
suit against New York City and State officials who are also defendants in
Marisol. Joel A. v. Giuliani, No. 99 Civ. 0326 (RJW). Each of the objectors is a
gay child in the custody and care of ACS, within the third subclass of the
Marisol class. They are alleged victims of bias-related violence, harassment and
discrimination at the hands of their heterosexual peers in the foster care system
and by the City and State officials responsible for overseeing the child welfare
system. They bring claims under a variety of federal and state constitutional and
statutory provisions and seek "concrete relief for bias-related victimization by
their peers, and systemic discrimination based on sexual orientation, both of
which result in physical, emotional, psychological, and developmental injuries."
The Joel A. objectors asserted in the district court and claim here that they
could not be adequately represented within the Marisol subclass three, since the
class consists of the very peers who have been victimizing them, and that the
district court took insufficient steps to ensure that they were adequately
represented in settlement discussions. The objectors allege that the Settlement
Agreements impose unduly broad restrictions on their right of access to the

courts, in violation of Rule 23(e) and the Due Process Clause of the United
States Constitution. They further allege that the concessions made to the
Marisol defendants were granted in exchange for illusory relief of practically no
value to class members.
III. The District Court Opinion
14

After a fairness hearing on January 22, 1999, at which the Joel A. objectors
interposed objections, the district court issued a written opinion. Marisol A. ex
rel. Forbes v. Giuliani, 185 F.R.D. 152 (S.D.N.Y. 1999) ("Marisol V"). The
district court discussed at length the factors that a district court should consider
in evaluating whether a class action settlement is fair, reasonable and adequate.
See id. at 162. These so-called Grinnell factors include: "(1) the complexity,
expense and likely duration of the litigation, (2) the reaction of the class to the
settlement, (3) the stage of the proceedings and the amount of discovery
completed, (4) the risks of establishing liability, (5) the risks of establishing
damages, [and] (6) the risks of maintaining the class action through the trial."
Robertson v. National Basketball Ass'n, 556 F.2d 682, 684 n.1 (2d Cir. 1977)
(quoting City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974)).

15

The district court found that the Grinnell factors either weighed in favor of the
settlement or were irrelevant. In particular, the court noted that (1) the pending
action presented many unsettled and complex legal issues, and a trial would
take five months or more and be "extremely costly"; (2) only three objections
were raised out of a class of 100,000; (3) trial preparation had been extensive,
so that counsel was thoroughly familiar with the strengths and weaknesses of
their respective cases; (4) the agreements were more favorable to the plaintiff
class than any relief the district court could have unilaterally ordered after a
trial resulting in a plaintiffs' verdict, and no preferable alternative remedy had
been suggested; (5) it was unlikely that the class or subclasses would be
decertified; and (6) the settlement was negotiated at arms length by
experienced counsel. Marisol V, 185 F.R.D. at 162-65.

16

The court rejected the argument that the relief provided by the settlements was
illusory, and found that the covenants not to sue and releases were not unfair or
oppressive as they only precluded class equitable claims for two years, and
allowed individual plaintiffs to sue for relief tailored to their specific concerns
at any time. The court concluded that "a moratorium on class action equitable
suits for two years, while plaintiffs and defendants work together to develop a
better child welfare system, is fair, reasonable, and adequate." Id. at 170. In
addition, the court held that the Joel A. objectors' claim of inadequate
representation, on the basis that no Marisol named plaintiff had standing to

raise claims of discrimination specific to the Joel A. class, had already been
decided and affirmed on appeal. See id. The district court concluded that the
settlements were fair, reasonable and adequate, and approved them. This appeal
followed.
DISCUSSION
17

Federal Rule of Civil Procedure 23(e) requires court approval of any settlement
that effects the dismissal of a class action. Before such a settlement may be
approved, the district court must determine that a class action settlement is fair,
adequate, and reasonable, and not a product of collusion. See, e.g., Maywalt v.
Parker & Parsley Petroleum Co., 67 F.3d 1072, 1079 (2d Cir. 1995); Grant v.
Bethlehem Steel Corp., 823 F.2d 20, 22 (2d Cir. 1987).

18

We review a district court's decision to approve a proposed settlement of a class

action for abuse of discretion. See In re Ivan F. Boesky Secs. Litig., 948 F.2d
1358, 1368 (2d Cir. 1991). The trial judge's views are accorded "great weight . .
. because he is exposed to the litigants, and their strategies, positions and
proofs. . . . Simply stated, he is on the firing line and can evaluate the action
accordingly." Grinnell, 495 F.2d at 454 (internal quotation marks omitted). The
considerable deference accorded to the judgment of the district court is
heightened where the trial judge's experience has imparted to the judge a
particularly high degree of knowledge. See, e.g., Twelve John Does v. District
of Columbia, 117 F.3d 571, 576 (D.C. Cir. 1997) (finding that "the district
court's experience overseeing the case for nearly two decades" had given it "a
unique familiarity with the issues and the performance of class counsel"). The
Marisol case is related to two child welfare institutional reform cases, Jesse E.
v. New York City Dep't of Soc. Servs., No. 90 Civ. 7274 (RJW), and Wilder v.
Bernstein, No. 78 Civ. 957 (RJW), over which Judge Ward presided for nearly
ten and twenty years, respectively. Judge Ward's two decades of experience in
matters regarding New York City's child welfare system make him uniquely
qualified to determine the reasonableness of the settlement achieved.

19

On appeal, the Joel A. objectors argue that (1) there is no evidence in the
record of any structural precautions implemented to assure adequate
representation of the interests of the three subclasses during settlement
negotiations, (2) the covenants not to sue and releases contained in the
agreements are given in exchange for illusory consideration, and (3) the
covenants not to sue and releases are overbroad and oppressive, and violate the
due process rights of absent class members. We consider each argument in turn.

20

I. Adequate Representation of Subclasses During Settlement Negotiations

21

Appellants contend that, although the district court created subclasses, it failed
to ensure that the different interests of each subclass were adequately
represented during settlement negotiations, and failed to implement structural
precautions toward that end. We reject these contentions.

22

Relying on Amchem Products, Inc. v. Windsor, 521 U.S. 591, 627 (1997),
appellants insist that the district court abused its discretion when it approved
the settlements without complying with what appellants characterize as a
requirement of "structural assurance of fair and adequate representation" of the
subclasses. Amchem is inapposite to this case.

23

In Amchem, plaintiffs, exposed to the asbestos of one manufacturer, instituted a

class action for a single class after a settlement had been agreed to in principle.
The parties moved jointly for conditional class certification and approval of a
settlement agreement. See id. at 601-02. The district court granted the motion
without any litigation. See id. at 605-06. The Supreme Court held that, in those
circumstances, there should be a higher level of scrutiny of whether Rule 23's
requirements were met, because "a court asked to certify a settlement class will
lack the opportunity, present when a case is litigated, to adjust the class,
informed by the proceedings as they unfold." Id. at 620. In this case, by
contrast, the class was certified and the case intensively litigated for more than
two years before settlement negotiations began.

24

Moreover, the Amchem class presented an obvious conflict between those

currently injured and those who had yet to suffer injury, but would in the future.
See id. at 626. No such obvious conflict is present in this case. In fact, when we
approved the certification of the class in Marisol II, we specifically rejected
defendants' contention that the interests of part of the class, children in the
system's custody, were opposed to the interests of those children who were not
in custody. We observed that with respect to the broad relief sought - dramatic
improvement in the quality of all child welfare services - "the interests of the
class members are identical." Marisol II, 126 F.3d at 378. Without the sort of
conflicting goals among the subclasses that would require separate
representation, we find nothing in Amchem that requires a district court to
make specific findings, when approving a settlement, that each subclass
received adequate representation.

25

To the extent the Joel A. objectors are now contending that their representation
by Marisol subclass three, of which they concede they are a part, was
inadequate, that argument is untimely. Whatever perceived differences they had
with the other subclass members were apparent when the subclasses were
certified, just as it was clear that they were to be represented for all purposes,

including settlement purposes, by the Marisol subclass three plaintiffs. If the

Joel A. objectors wished to dispute the adequacy of the representation of their
subclass, they should have done so when the subclasses were certified. To the
extent that appellants' argument is a belated objection to class certification on
the basis of adequacy of representation, the argument is waived.
26

We therefore decline to find that the district court inadequately responded to

our earlier concern that the original certified class "stretche[d] the notions of
commonality and typicality," id. at 377, when it certified the three subclasses,
one of which included the Joel A. objectors.

27

II. The Relief Obtained for the Marisol Class Members

28

Appellants contend that the relief obtained in exchange for the release of claims
was "illusory" because the City is only required to provide information to the
Advisory Panel, which, in turn, "is not required, in any enforceable sense, to do
anything with the information it receives" and has no authority to compel the
defendants to act. Appellants assert that the district court should have "
(1)identified the legal rights being violated by the City defendants, (2) ordered
the City defendants to devise a program to cure these violations, (3) made such
modifications to the plan as the Court deemed necessary . . . and (4) ordered
compliance with the plan as modified." Appellants also claim, without much
elaboration, that the State Settlement "fails to provide any direct, concrete, or
reasonably certain relief" to class members. There is no merit to these
arguments.

29

The district court explicitly found none of the relief provided for by the
settlement agreements to be illusory. See Marisol V, 185 F.R.D. at 168-70.
Judge Ward observed that "the City Settlement Agreement provides for a panel
of nationally respected and renowned child welfare experts to comprehensively
evaluate the operations of ACS," and that the Panel "has been given full access
to information, documents, and personnel of ACS." Id. at 169. In response to
the objectors' concerns about a lack of definitive dates for the Panel to issue its
reports, the district court found that the Panel "has a time frame during which to
complete its tasks . . . . Given the expertise of the Advisory Panel, the Court is
not concerned that specific dates for the Reports are not included." Id. The
district court further found that the State Settlement Agreement provided for
"specific actions to be taken by the State, including establishing NYCRO and
monitoring functions which benefit children in the care and custody of ACS."
Id.

30

Finally, in discussing remedies, the district court observed that the City had

30

Finally, in discussing remedies, the district court observed that the City had
been working to reform its child welfare system and had achieved certain
improvements. It noted that although plaintiffs might have been able to
establish liability at trial, "the Court may not have been in a position to provide
for more relief than simply encouraging continued effort and improvement by
ACS." Id. at 164. The district court concluded that:

31

With the beneficial terms of the Agreements and safeguards in place should the
City or State fail to comply, the Court believes that these voluntary Settlement
Agreements are more favorable than any remedy that could have been imposed
by the Court at the end of a trial.

32

Id. at 165.

33

The district court did not abuse its discretion in finding that the Agreements
provided tangible and valuable relief to class members, including the Joel A.
objectors. While there are no guarantees that all class members will be satisfied
by the reform that results from the Settlement Agreements, there is no evidence
at this point that the Advisory Panel is ineffective or has not received the
cooperation of the City and State defendants, nor is there any indication that
any alleged weaknesses in the settlement terms would have a more adverse
impact on the Joel A. objectors than on the entire class. Whether litigation will
have to be resumed after the two-year hiatus imposed by the settlement
agreements remains to be seen; in the meantime, appellants have not convinced
us that Judge Ward, with his substantial expertise in overseeing litigation
affecting the City's child welfare system, acted unwisely, much less abused his
discretion, when he approved the Settlement Agreements as a fair exchange
between the parties.
III. Covenants Not to Sue and Releases

34

Appellants argue that the covenants not to sue and the releases contained in the
settlement agreements are overbroad and violate the due process rights of
absent class members. They claim that (1) the restriction on their rights to seek
relief for injuries during the duration of the agreements is impermissible, (2)
the covenants and releases improperly restrict the rights of certain class
members to pursue legal claims that the class representatives lacked standing to
bring, and (3) the provisions that allow actions by individuals are inadequate.
We do not think that, on the facts of this case, these concerns warrant
invalidation of the settlement.

35

A. Restrictions on the Right to Seek Systemic Injunctive Relief

35
36

Paragraph 48 of the City Settlement Agreement provides:

37

Effective upon the expiration of the term of this Agreement on December 15,
2000, Plaintiffs . . . hereby jointly and severally release and forever discharge,
on the merits and with prejudice, the City . . . of and from any and all manner of
equitable claims, actions, costs, expenses and attorneys' and expert fees . . .
whether known or unknown, foreseen or unforeseen, matured or unmatured,
accrued or not accrued, direct or indirect, that the named Plaintiffs and the
members of the class, and each of them, ever had, has or have on December 15,
2000, or can, shall or may thereafter have against the releasees . . . for, by
reason of, involving, concerning, arising from or in any way relating to any
equitable claim which is or could have been stated against the releasees in the
Marisol Litigation . . . and which claim is based on facts, events, actions or
omissions by the City or any releasee which took place from the date of Court
approval of this Agreement to December 15, 2000, other than a claim by an
individual plaintiff for equitable relief tailored solely to the specific
circumstances of that individual plaintiff.

38

Paragraph 41 of the State Settlement Agreement also provides:

39

All class-wide or systemic claims arising from new facts and/or circumstances
that occur during the duration of this Agreement and which relate in any way to
any claim raised in the Pre-Trial Order are resolved by this Agreement, except
that this Agreement shall not preclude any individual class member from filing
an action on their own behalf . . . .

40

We reject appellants' argument that these releases and covenants not to sue deny
them due process. When viewed in the context of the entire settlement, the
release is extremely limited in scope. Designed to "permit[] the parties and the
Advisory Panel to focus upon and achieve the objectives of th[e] Agreement,"
City Agreement 42(a), the sole effect of the release is to prohibit, until
December 16, 2000, class action suits asserting equitable claims that are related
to the claims asserted by the Marisol class and seek systemic relief. The release
explicitly preserves the right of "an individual plaintiff [to sue] for damages or
equitable relief tailored solely to the specific circumstances of that individual
plaintiff." Moreover, after December 15, not only are all plaintiffs - including,
of course, the Joel A. plaintiffs - free to pursue a class action for systemic relief
of any outstanding violations, but in support of such an action they may rely
upon evidence pre-dating December 15. As the Joel A. plaintiffs seek only
prospective rather than remedial relief, the practical effect of the limited release
is the same as if the settlement had merely stayed the Joel A. action for a
reasonably brief period in order to allow an attempt to achieve an administrative

solution that would moot the Joel A. and Marisol claims.

41

In substance, then, the Joel A. class members are not being barred from the
courthouse door; they are simply being told that, with respect to claims in
equity they may have that relate to the claims raised in the Pre-Trial Order in
the Marisol litigation, they have to come one at a time - and seek no systemwide relief - before December 16, 2000, whereupon they may return as a class,
if need be, to remediate ongoing systemic deficiencies. The limited release
effectively delays the Marisol and Joel A. suits until December 16, 2000, at
which point defendants will have had a reasonable opportunity to effect the
desired reforms. Thereafter, plaintiffs are free to re-initiate their actions and to
request relief identical to what they seek in this suit. Moreover, if plaintiffs
choose to re-file after December 15, discovery will be greatly facilitated
because much, if not all, of the relevant documentation will have been collected
and turned over to the Advisory Panel. Viewing the settlement as a whole, then,
we conclude that the limited release and covenants not to sue at issue here do
not contravene public policy or materially deprive the Joel A. plaintiffs of their
claims. Accordingly, we find that the Joel A. plaintiffs have not been denied
due process in this regard.
B. Standing to Assert Joel A. Claims

42

Appellants' second argument is that the Marisol plaintiffs had no authority to

settle claims belonging to the Joel A.class, which they lacked standing to assert.
Specifically, appellants claim that the Marisol plaintiffs had no stake in claims
concerning bias-related violence, abuse and harassment or systemic
discrimination based on sexual orientation. But the remedy anticipated by both
Settlement Agreements, while broader than the particular relief sought by the
Joel A. class, is likely to deal with these complaints, as they are a subset of a
larger claim of systemic inadequacies. While the claims related to bias and
discrimination on the basis of sexual orientation are not shared by all of Marisol
subclass three, our precedents do not dictate that the settlement be invalidated
because these claims are subsumed within a more generalized claim.

43

Plaintiffs cite National Super Spuds, Inc. v. New York Mercantile Exchange,
660 F.2d 9, 16 (2d Cir. 1981), for the proposition that class representatives
cannot bargain away rights belonging to class members in which they have no
stake. We do not find Super Spuds to be controlling on the facts presented here.
In Super Spuds, plaintiffs brought a class action on behalf of all persons who
liquidated long positions in Maine potato futures contracts between April 13
and May 7, 1976, during which time prices had been depressed by defendants'
wrongful conduct. See id. at 11. The proposed settlement agreement in Super

Spuds not only barred class members from bringing claims based on the
liquidated contracts, but also barred all other claims by class members against
the defendants, including claims based on contracts unliquidated at the close of
trading on May 7. See id. at 14. In return, class members were to receive
damages calculated solely on the contracts liquidated during the class period.
See id. Richards, a class member who held contracts liquidated during the class
period as well as contracts only liquidated after May 7, objected. We held that
there was "no justification for requiring Richards or persons similarly situated
to release claims based on unliquidated contracts as part of a settlement in
which payments to class members are to be determined solely on the basis of
the contracts they liquidated." Id. at 18.
44

Two primary characteristics distinguish Super Spuds from the present action:
(1) a finite settlement fund that was to be allocated among class members, and
(2) claims of certain class members (unliquidated contracts as of May 7) that
were valued at zero in order to provide a higher payment to claims of other
class members (contracts liquidated between April 13 and May 7). In that case
it was clear that the settlement provided absolutely no benefit to class members
who held unliquidated contracts as of May 7. There is no such clear divide
between the members of Marisol subclass three and the Joel A. objectors. This
is not a case presenting "the danger that a class representative not sharing
common interests with other class members would 'endeavor[] to obtain a better
settlement by sacrificing the claims of others at no cost to themselves.'" TBK
Partners, Ltd. v. Western Union Corp., 675 F.2d 456, 462 (2d Cir. 1982)
(quoting Super Spuds, 660 F.2d at 19 n.10). In view of the important systemwide attempt to reform New York City's foster care system, it cannot be said
that the settlement provides no benefit to the Joel A. class members, as they are
in need of the same improved services, better training and closer monitoring as
the other foster children. We find it therefore inaccurate to claim that the
settlement was paid for with the "uncompensated sacrifice" of the Joel A.
claims. Super Spuds, 660 F.2d at 19.

45

Furthermore, in light of the limited scope of the release in this matter, the Joel
A. plaintiffs' reliance on our decisions in TBK Partners and Super Spuds is
misplaced. In those cases, class plaintiffs objected to far broader, permanent
releases of all their claims. As explained supra at 142, under the settlement in
the instant matter, plaintiffs need only forego class actions seeking systemic
relief, and then only for a relatively brief time. In these circumstances, it is
immaterial whether the Joel A. claims "rest[] on the same factual predicate as"
the Marisol claims. TBK Partners, 675 F.2d at 462.

46

Finally, to the extent that appellants now claim that the Marisol plaintiffs had

no right to restrict the Joel A. objectors' ability to press claims that no class
representative could have brought, we reject the argument as an untimely attack
on the adequacy of the plaintiff subclasses. This claim was waived long ago; as
we have explained supra at 136-37, appellants had ample opportunity to
challenge the subclasses fashioned by the district court, but failed to do so.
C. Individual Rights of Action
47

Finally, appellants argue that the provisions allowing individual plaintiffs to

bring actions for damages or injunctive relief are inadequate because they lack
the resources to retain counsel and prosecute complex actions. We do not accept
the objectors' assertion that they cannot achieve the relief they seek by bringing
individual actions where necessary, and by waiting to benefit from systemic
reform. These provisions afford an individual recourse to the courts if his or her
circumstances demand it, and apply equally to all foster children. Appellants
have put forth no reason why this bargained-for exchange was any less
adequate for Joel A. class members than for any other foster children.

CONCLUSION
48

The City Settlement Agreement and State Settlement Agreement were

negotiated by experienced public interest counsel and are the product of several
years of discovery and months of negotiation. Together, they attempt to find the
beginnings of a solution to the persistent inadequacies of New York City's
foster care system alleged in plaintiffs' complaint. The City and State
defendants recognize that reforms are necessary, and have exhibited a
willingness to achieve them. It is possible that they may fall somewhat short of
their stated goals of transparency and cooperation; however, a settlement
agreement achieved through good-faith, non-collusive negotiation does not
have to be perfect, just reasonable, adequate and fair. The Agreements were
reviewed in detail by a district judge steeped in child welfare litigation and
possessed of great experience in such matters. He found that the covenants and
releases, which effectively create a moratorium on class action equitable suits
for two years while the parties attempt to reform the child welfare system, are
not oppressive, and represent a fair compromise when balanced against the
gains to the class members from systemic reform facilitated by the Agreements.
We agree.

49

The district court acted within its discretion when it approved the City and
State Settlement Agreements. The decision of the district court is affirmed.